The validity of speech restrictions on government property effectively depends upon the property's status as a public forum or not. Professor Massey asserts that this preoccupation with the forum status of public property occludes understanding of the real factors that guide the Court's resolution of the validity of such speech restrictions. In its public forum cases the Court is committed to two propositions: (1) speech on government property can interfere with legitimate non-speech uses of the property, and (2) the government's obligation is to remain neutral in public discourse, rather than to promote as much discourse as possible. Building on those premises, Professor Massey argues that the real issue in public forum cases is whether the speech or the restriction induces deviations from government neutrality, not the forum status of the property. To address the real issue, Professor Massey suggests that we compare the harm and utility of speech on public property and restrictions upon that speech. Both harm and utility is measured by the extent to which the speech or the restriction increases governmental departure from neutrality. Professor Massey then reassesses the principal public forum cases in light of the harm/utility calculus in an effort to demonstrate that his proposed method adds clarity to our understanding of the public forum problem.
Public Fora, Neutral Governments, and the Prism of Property,
50 Hastings L.J. 309
Available at: https://repository.uchastings.edu/hastings_law_journal/vol50/iss2/2